LOCKPORT – The third murder trial of Robie J. Drake, the North Tonawanda man who shot two of his fellow high school students to death 32 years ago, has been scheduled for March 10.
State Supreme Court Justice Richard C. Kloch Sr. made the announcement Thursday as he ruled that Drake will be allowed to keep his two assistant public defenders, Christopher A. Privateer and Joseph G. Frazier, despite a conflict of interest.
Drake has admitted riddling a parked car with bullets on the night of Dec. 5, 1981, in a dark factory parking lot off River Road in North Tonawanda. The barrage killed Steven Rosenthal, 18, and Amy L. Smith, 16, who were kissing inside the car.
The question for the jury will be whether Drake knew he was shooting at people, which would make it murder, or whether he thought the car was empty, which would make it manslaughter.
Murder means two life sentences for Drake, while a manslaughter conviction would assure him of getting out of prison some day.
In fact, two second-degree manslaughter convictions would call for Drake’s immediate release, since he’s already served more time than the 30-year maximum for two counts of that crime.
On Thursday, Kloch said the Niagara County Public Defender’s Office has a “clear conflict of interest,” because it is currently representing a prosecution witness against Drake, Edward J. Cusatis, in a misdemeanor assault case in Niagara Falls, scheduled for trial Wednesday.
But Kloch found that since Drake has waived the conflict, his desire to have attorneys he is comfortable with outweighs the conflict.
Juries in 1982 and 2010 both voted for murder, but both verdicts were set aside on appeal.
The first trial was tainted by a bogus expert witness who committed perjury with the prosecutor’s knowledge, a federal court ruled in 2009.
The second trialwas ruled invalid because Kloch allowed evidence of a purported sexual assault, a bite mark, on Smith’s corpse after she was dead, but Drake was never charged with a sex crime.